MAHARASHTRA NATIONAL LAW UNIVERSITY MUMBAI

TERM PROJECT FULLFILMENT OF THE ASSESSMENT

IN THE SUBJECT OF JURISPRUDENCE

“SHOULD POLYGAMY BE CRIMINALIZED?”

SUBMITEED TO: Dr. ABHIJIT ROHI (COURSE INSTRUCTOR)

SUBMITEED BY: SHIV KUMAR SHARMA ROLLNO.2017 049

 SHOULD POLYGAMY BE CRIMINALIZED ?

INTRODUCTION
To criminalize a conduct means to convey that certain actions are inherently public wrong and
should not be done. To institute a fear of punishment, there should be sufficient reasons for a
democratic govt., justifying its cohesive power against individual or organization1. As per
Andrew Ashworth there are certain fix principles that must be kept in mind prior to declare an
act as an illegal. Quoting Douq Huak he argues that in democracy there is right of not to be
punished unless these principles in form of reasons justify it2.
This essay argues that there is sufficient reason for criminalizing polygamy3 in Indian society. To
substantiate arguments in a systematic manner research will look upon three well settled
principles of criminalization and then would substantiate argument based on these principles
by using jurisprudential understandings of different scholars.
PRINCIPLE OF MORALLY WRONG BEHAVIOR
Principle of morally wrong behavior argues that if a behavior is regarded immoral in a society
than it should be criminalize. This principle is based on Lord Devlin’s understanding of morally
wrong behavior4. As per him every society has right to use criminal force against behavior
which may threaten its existence. Moral as regarded by him keeps society together and secure,
deviation from it can affect its existence.
As per this theory common morality can be ascertain by collecting group of person as jury and
asking them to decide about certain behavior. If that behavior generate felling of intolerance,
indignation and disgust than the act is immoral and should be punish for protecting society.
Looking from this approach, it can be claimed that there is support in jurisprudence to
criminalize polygamy. Multiple marriages are considered as an inferior social conduct in
common parlance. It is believe that marriage is union of one man with one woman and should
be respected in same form. It is one of the reasons why the offence is classified as ‘offence

1
ANDREW ASHWORTH, PRINCIPLES OF CRIMINAL LAW 55 (7th edt.)
2
D. Huskan, Overcriminalization (2008). See, Id.
3
Polygamy means multiple marriages of both man and woman. However, since polyandry is considered as a taboo
arguments can be implied to polygene.
4
Supra 1, 65.

2
against marriage’ and punished under Indian Penal Code. Even Indian judiciary in case of Narsu
appa Mali considered monogamy as a sign of social progress5.
It can be argued that this law is based on western morality then that of India. But it is also true
that at present point of time it is universally supported claim that monogamy is best suited for
society. Further polygamy is not only considered as an offence but also as an immoral act, the
justification of it comes from NSS (2005) which says that even polygamy is allowed for Muslim
men only 2.5% of them do so. Thus there is moral force which prohibits polygamy.
However this argument is largely criticized on basis of liberal understanding of society. It is
contested that individuals are autonomous and end in themselves and therefore restricting
their liberty for sake of moral consideration is not justifiable. This argument can find its support
in writing of positivist writers. For example; when Professor Joseph Raz argues that state should
try to create conditions for maximum autonomy of individual and no one’s autonomy should be
infringe unless it is done to protest or promote his or others autonomy, he asks for minimalist
use of criminal laws6.
This argument of individual autonomy will be dealt in next portion of the essay. However, to
end discussion on morality as a reason for criminalizing polygamy, it is argued that using force
to protect integrity and equiblium in society is allowed by principles of criminology.
PRINCIPLE OF INDIVIDUAL AUTONOMY
The principal of Indiviual Autonmy has two elements, factual and normative. As per factual
element individual have sufficient capacity and free will and therefore if they commits a wrong
then it is due to their own action and there is no involvement of any external force working on
them. This is supported by normative principal that argues that individuals are autonomous and
have agency to decide their own act and omission. Therefore it is argued that morality as a
ground for criminalizing an act is unjust. Scholars such as Neils Jarebong and have argued to
protect individual from coercive power of state. To put in words of Joel Finberg, “the most basic
right of individual is autonomy…..it is individual who should decide whom to marry, what to
study, which church to go7”.

5
State of Bombay v. Narsu Appa Mali, AIR 1962 Bom. 85.
6
See, J. Raz, Morality of Freedom (1986), 425.
7
See, J. Finberg, Harm to Self (1986),54.

3
However, this claim of individual autonomy can be criticized by arguing that when an individual
enters in marriage relationship with other he recognizes certain rights and obligation. This can
be substantiated by arguing Dworkin notion of reciprocity8. This notion simply means that an
individual has ‘a duty to honor our responsibilities under social practices that define groups and
attach special responsibility to membership.’ For example a child can be made obligated to his
parents so long as equal concern that is plausible and sincerely held. This sort of obligation
which individual holds is called as ‘Associative Obligations’. And as per him law made to full fill
such argument are justified and legitimate.
Taking this notion in the case of marriage, as long as there are mutual obligations which
husband and wife have for each other and to protect this institute and sanctity to it, use of
criminal force is justified even if it curtail individual autonym. The reason being your autonomy
is restricted by your duty toward your family. Most of the research has suggested that
polygamy leads to competition among wives, economic and social insecurity and inhuman
treatment by husbands9.
The institution of marriage is of immense importance at least in Indian society. It is still sacred
in certain laws. Since polygamy has potential to break this institution it is consider as an offence
against marriage under IPC.
THE PRINCIPLE OF REMOTE HARM
The principle of harm is most important and dominated principle in theory of criminology. This
principle is mostly use to argue against morality and its importance in criminal law. But in this
case this principal further makes our side stronger. As per J.S. Mills the only purpose for
exercising power upon member of a civilized society, is to prevent harm to other. Principle of
remote harm build its foundation on the argument made by Mills but is not completely same.
The Remote Harm principle argues that certain conduct may create an opportunity of causing
serious consequential harm in future and to avoid them an act must be penalize 10. For example
holding nuclear weapons by an individual is prohibited as it may cause certain harm to society.

8
Dworkin, Laws Empire(1985).See, MICHAEL FREEDMAN, INTRODUCTION TO JURISPRUDENCE, 606(2016).
9
See, Dr. Ruth Gaffney, Polygamy and rights of Women, Springer vol 1, 2011.
10
Supra 1, 74.

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Therefore this principal is based on consequences of an act in society. It argues that if
consequences may lead to harm then act can be criminalized, in order to restrict it.
This sort of understanding can be found even in sociological school of jurisprudence. To build
my argument I would like to draw attention on Roscoe Pond and his work of Social Engineering.
As per him jurisprudence is not so much social science as a technology and analogy of
engineering is applied to social problem11. In simple words law makers should concentrate on
what will be the effect of a law on society other than source of it. He do not restrict himself
here and argues that it may become possible that individual right may come in conflict with
greater right of community in this process. To solve this conflict he says that in such case of
comparison individual claim must give way for larger social good.
Now let’s consider present debate with this approach. First, Indian society is already a patriarch
society (at present) and it may be argued that polygamy means multiple marriages for man and
women both but in this structure mostly it will be ending as man with multiple wives. Second,
at present sex ratio allowing multiple marriages will not only lead to social inequality but may
even lead to situation of imbalance and increase in criminal activity. Last and most important,
polygamy, as recognized by UN, leads to women and child rights violation. It may result in a
situation women would be considered like a chattel for rich man. A husband after getting
satisfied with one wife may do another marriage in search of new and younger bride. And thus
polygamy can lead to gross violation of dignity as well as social economical and political safety
of women.
Conclusion
The essay based on the above stated approaches and looking at present socio-political and
economical situation in India argues that polygamy needs to be criminalized in India. However,
it may be possible that in other context, there may be other better option or exceptions but
looking at our society at large essay concludes it is better option. Further essay supports that
there is jurisprudential support to criminalizing of polygamy in India and practice can be kept as
an offence under IPC.

11
Wigoder, Roscoe Pound, Philosophy of Law (1974). As cited in, Supra 8, 720.